The Highest Court in the Land: Justice Makers

These are the 12 justices who make up the Supreme Court.

All rise.

They have the last say in the most controversial

and difficult issues in the land.

Very often the law is on a knife edge when it comes to us.

Their decisions affect everyone, from MPs accused of fraud...

Each of these appeals is dismissed.

..To millions of bank customers.

The big institutions of the law

have backed the big institutions of finance.

Their decisions protect our democracy and shape our society.

Does he assume that or not assume that or what?

-What does the Secretary of State do?

-We're getting so confused.

For the first time, Britain's top judges

talk about their lives, their work and how they make their decisions.

I sometimes start writing a judgment

and I don't know where I'll get to at the end of it.

What they decide binds every citizen in this country.

But are their rulings always fair?

Fairness is rather like beauty.

It's in the eye of the beholder, isn't it? One side has lost.

Does the mix of the court reflect modern life?

There becomes a stage

when it is embarrassing that there is not a woman.

Do their emotions get in the way of their rulings?

One has enormous sympathy for the individual.

You can see how much this case means to them.

And if they weren't there, what could happen?

The extent of the invasion of liberty would widen,

people would simply disappear,

freedom of press would be trampled on.

It's our job to see that that simply does not happen.

Are their decisions always right?

Anyone who expresses themselves as absolutely certain

is either a genius or a fool.

This court dispenses justice at the highest level.

Everyone in the land is answerable to them.

But who are they, and what makes them tick?

In this film, four of them reveal how justice works,

their battles with the Government, their struggle with emotion

and the responsibility of having to be right.

It's 6am and Lord Phillips has been up for hours.

As Head of the Court, what does he think you need

to become one of the top judges in the country?

You need a good intellect.

Ultimately what matters is a feel for what is the right decision

and this is a mixture of analysis and common sense.

Looking at the implications.

It sounds a bit obvious, that to be a good judge

you need good judgment.

Lord Hope, Deputy President of the Court,

points out the importance of temperament.

You don't want to be the kind of person who rushes to judgment

and sticks to come what may.

You've got to be prepared to adjust your own views,

however hard you were attached to them to begin with,

by realisation that you probably weren't right after all.

Lord Kerr believes that however well they do the job,

they'll face tough criticism.

Each case must be approached with complete independence of thought

and then hopefully the outcome will bring justice.

But one man's justice is another's injustice.

Bye-bye, darling. Have a good day.

Lady Hale is the only woman in the court.

It's very difficult to say exactly what a woman brings,

but every judge brings their own particular experiences and background

into the job.

We lead different lives from men, we have no choice.

It's a good idea if those different perspectives

find their way into the law.

Until 2009, the highest court in the land sat in the House of Lords.

They were the Law Lords.

It was Tony Blair who made the decision

to move them across the square and into their own building.

The change, which took ten years to enact,

was intended to make a crucially important public statement.

That the Judiciary should be seen to be free

from the influence of Parliament.

It's moved here primarily as the last step in the separation of powers

and in particular a principle that judges should be wholly independent

of those who make the laws

and those who are bound by them, and who execute them, the administration.

When the justices make their decisions,

they do so not only independently of Parliament,

but with the unique power to reverse the rulings of all lower courts.

We are the final Court of Appeal

and so sometimes a case has had to be decided a particular way

by the trial court and by the first Court of Appeal

because there is a binding precedent

which tells them which way to decide it.

But we, of course, can say

that the decisions of earlier or lower courts are wrong.

By rejecting earlier rulings

they establish new precedents.

In these instances they make new case law.

They also have the freedom to interpret another sort of law,

parliamentary law,

and here they may even find there is no past case to refer to.

The law is made across the square by Parliament

and they churn out thousands of laws, and they are not all crystal clear,

so issues arise. What did Parliament mean when it enacted this?

The language is confusing, that's the kind of issue.

If it's of great importance, we will ultimately have to resolve.

And in that kind of situation

you won't have much guidance from previous cases.

You have to reach a novel decision on a novel point.

This unique role means cases of particular general importance

or constitutional issues

will end up in the Supreme Court.

This is why the court should be seen to be separate from Parliament.

One case demonstrated this powerfully,

and the public were hooked.

Some MPs could end up in court as a result of investigations

into their expenses.

Three MPs and a lord were accused of submitting false expenses.

They argued they could not be prosecuted in a criminal court

because submitting their expenses was a parliamentary procedure

and that all procedures were covered by parliamentary privilege.

This privilege had originally been intended to protect MPs' right

to speak freely in the Commons.

It came to this court

because it involved an important constitutional issue.

In what circumstances

can the courts investigate what's gone on in Parliament?

So, this was an important constitutional issue,

and it so happened an issue of considerable public interest as well.

All rise.

The MPs were appealing against a lower court ruling

which had rejected their arguments.

It is a point of really fundamental constitutional importance.

Parliamentary privilege is a phrase which everybody knows about,

and in a way it's a kind of umbrella which can be put up

and people shout "privilege" and you think, that must be an end of it.

In many cases it may be enough to scare people away.

As a mark of its transparency,

all the proceedings of the court are filmed.

Every moment of this hearing would be recorded.

These are the first criminal prosecutions

of members of the House of Commons

based on a member's dealings with Parliament for over 300 years.

Thanks very much, Mr Plemming.

The system is that the country's top barristers

present the case to the justices.

In this instance they had to decide

how far parliamentary privilege extended.

Suppose the Member of Parliament is so aggrieved

by what a colleague has said in a parliamentary debate

that he confronts his colleague in the bar and he stabs him.

My friend, Mr Fitzgerald, accepted in answer to Lord Kerr

that this is not covered by privilege.

The defence wanted to make it clear

that the MPs weren't trying to avoid judgment

but that they believed it was Parliament

that should do the judging.

This is not, and never has been,

an attempt to take them above or outside the law

is our proceedings to ensure that the allegations against them

are dealt with by the correct law, the law of parliament.

The court had to decide whether the ancient claims of privilege

laid out in the Bill of Rights were being abused

or whether they were actually applicable.

After a two-day hearing, the justices reached a unanimous verdict

on the MPs' appeal.

Each of these appeals is dismissed. The reasons will be given later.

The court will now adjourn.

It was decided that scrutinising the claims

would not infringe freedom of speech or debate.

The only thing it would inhibit is the making of dishonest claims.

By no means was it a foregone conclusion.

It may have appeared to be a bit of an obvious answer

but that certainly was not the case.

Their ruling paved the way for David Chaytor to go to prison.

I think if we'd ruled in the other direction,

the man in the street would say,

I think there is something wrong here,

because if one is dealing with criminal offences,

you would expect it to be criminal courts who resolve it.

They're best equipped to do it. They've got all the rules,

the rules to protect defendants, apart from anything else.

It's a little strange if they can't simply can't enquire

into what looks like an allegation of an ordinary crime

because it involved parliamentarians or took place in Parliament.

Since the court opened it has ruled on a wide range

of controversial cases.

Two convicted paedophiles have won the right

to challenge their inclusion on the sex offenders register.

The Supreme Court today ruled in a case which goes to the very heart

of Jewish identity in that age-old question, who is a Jew?

The importance of the court's independence

has been highlighted by the increasing number of cases

where the individual citizen is in conflict with the state.

Much of the legal cut and thrust now revolves around the finer points

of the Human Rights Act,

as in this case, where the justices had to decide

whether British soldiers are protected by the Act

when serving abroad.

If Private Smith was not under the jurisdiction of the United Kingdom,

then whose jurisdiction WAS he under?

Is that not really the nub of the problem?

The fallback position here is 81c.

No, it isn't.

"In prison, or in such a place, or in such circumstances

-"as to require an inquest under any other act."

-The Human Rights Act.

Ah. You think that's what that refers to. Oh, neat solution!

But the ruling went against the soldiers.

The Supreme Court has ruled that British troops

are not protected by the Human Rights Act

when they are on the battlefield abroad.

In another human rights case,

gay asylum seekers won their right to stay in the UK.

To compel a homosexual person to pretend that his sexuality

does not exist

is to deny him his fundamental right to be who he is.

As these justices handle

the most significant and sensitive cases in the country,

how they are chosen is obviously crucial.

They are appointed by an independent panel of other lawyers

and professionals,

not by politicians.

We are very fortunate that we are not political appointments.

I don't really know what politics, if any, my colleagues have.

Could you be seen to be political?

Politics is not our business

and people might use the adjective of "political" against us,

but that's not what we're about at all.

We're the antithesis of politics, really.

We're detached from the political process.

We have been removed from the House of Lords

in order to make it absolutely clear we're detached from that process.

However neutral they believe they are,

judges have often been criticised for being remote from real life,

and therefore ill-equipped for the job.

So, what is the background of these judges

and what was it that tipped them into a life in the law?

Edinburgh is the hometown of Lord Hope and his ancestors.

He's descended from a long line of Scottish lawyers

dating back to the Lord Advocate to Kings Charles I.

His choice of career seems in keeping with family tradition.

You wanted to see some pictures of my previous existence.

This is me as Dean of the Faculty of Advocates.

I'm rather proud of that picture which shows me

holding the Dean's baton.

And after that...

I was appointed to the bench as Lord Justice General of Scotland,

and this is me looking very grim, as I thought was probably suitable

for me as a judge in charge of criminal process in Scotland.

A life in the law may have seemed like a foregone conclusion,

but it was not an easy choice to make.

I was a family of one of six

so that such resources as there were had to be spread

fairly thinly among us.

So I've always had to work on the basis

that I had to look after myself and my keep

which is why that decision initially was a very difficult one,

because I didn't have any money to support myself

through the early stages of the Bar,

but my wife, fortunately... We married shortly after I was called.

She was a teacher, and we had enough to keep going.

Lord Hope remembers his initial sense of fairness and unfairness

came from his childhood experiences at Rugby School.

Certainly at school when you were ticked off by a teacher

for something you didn't really think you'd done,

yes, I do remember those, yes.

You didn't often get a chance to defend yourself, actually.

That was my experience.

The teacher would say you did something,

or failed to do something, and that was that.

That was his judgment and you didn't get a chance to say,

"Hey, wait a moment, that was a mistake. I didn't mean to do that,"

or "You failed to see what I did."

The court reflects the entire United Kingdom.

Northern Ireland is represented by Lurgan-born Lord Kerr.

His Catholic upbringing is not an area he will discuss,

though his career has inevitably been affected

by the explosive mix of religion and politics.

Lord Kerr was just 22 when he was called to the Bar.

More recently he oversaw the Good Friday Peace Agreement.

No-one in my family

had been involved in the practice of law at all,

and if I'm absolutely honest

I chose law because I didn't want to do art,

and I probably couldn't have done science,

and law seemed the only option.

Now living in London,

His relaxed weekend routine starts

by making breakfast for his wife.

I don't drink tea. I don't like eggs.

I'm afraid I loathe Marmite,

but I'm making them because my wife loves them.

WATER POURS

I say to her I earn, in consequence, zillions of Brownie points.

But it's a bit like Air Miles - you never get to spend them.

Lord Kerr believes that it was the personality of the women

in his childhood that gave him a driving sense of morality.

My father died when I was quite young

and I was therefore influenced by the women in my family.

My mother was an extremely strong personality and my grandmother.

Their influence imbued me with a sense of what is right and wrong.

In one's legal career,

although one must maintain a certain professional detachment

occasions arise where you feel strongly

that a particular individual's interest requires to be vindicated.

Hello, darling.

Set your feet later, keep moving!

Lord Phillips has presided over some of the toughest

and most famous legal battles of the last 20 years -

including the trial of Robert Maxwell's sons.

He too was privately educated

and puts his life in the law down to one school visitor.

I first got attracted to the law when I was at school.

A barrister came to talk to us about the law. It was interesting.

When I went to university, I did a degree which included law

and found that I enormously enjoyed the academic study of law as well.

That was the final matter that decided me that I would go into law,

and go into the advocacy side of law and become a barrister.

Attracted by the intellectual challenge of the law,

the young Lord Phillips had no idea which part of the law to go into.

When I started off, I went into an esoteric area of the law,

called admiralty law and that was really by chance

I had done my National Service in the Navy and learnt about ships.

So, pure chance, I started in this area of the law.

Unlike his colleagues, Lord Phillips didn't believe

morality had anything to do with his career choice.

There were lots of things I thought weren't fair.

Usually they were respectable decisions that my parents were taking

but I didn't go into the law

because I wanted to put right things that were wrong.

I went into the law because I thought it looked

a very satisfying and interesting way of earning my livelihood.

Lady Hale was raised in Richmond in Yorkshire.

She didn't start her legal career as a barrister

but as a lawyer specialising in social and family law.

My husband does most of the main course cooking.

I do the starters and the pudding and he does the main course.

She's the only justice who wasn't privately educated.

My life has been different from that of most of my colleagues.

I went to a non-fee-paying state school. Quite a humble school.

It gave me a good education, but I'm sure it was quite different

from the education the boys were being given. I went to Cambridge,

and there were three women's colleges and 21 men's colleges.

That was very nice for us - great sex ratio and we had a good time,

as well as learning a lot, but it was fundamentally unfair.

So you went through a lot of your early life realising

that...the world was not yet an equal place for women.

Given that Lady Hale's background is so different from her colleagues,

why does she think she was selected?

I don't suppose it did me any harm to be a woman.

There comes a stage when it's embarrassing not to have a woman.

When you first arrive in this body of very...

intelligent, powerful men,

it takes time to work one's way in and learn and accept that maybe,

one could do the job as well as they're doing it.

My husband says, "They were as frightened of you as you of them,"

but I didn't see any evidence of that.

Lady Hale's appointment made history.

But what difference does she make to the all-male court?

I don't know how my colleagues are when I'm not around

they may be just the same, I suspect that they mostly are,

but one of the things about having a women present

is that it does become harder to express sexist views.

People begin to think carefully about how they express themselves.

But I wouldn't like to accuse any of my colleagues of being sexist!

Because I don't know.

All things being equal, I would like six men and six women

but the fact is that the law is tough profession.

It's not easy to combine it with having a family,

and so a lot of women drop out.

We draw our membership...

..so far, exclusively, from the upper ranks of the Judiciary

and there aren't all that many women in those ranks to draw from.

But the gender imbalance and the lack of any ethnic minorities

are not the only criticisms that face the justices.

The decisions they make impact on the lives of all of us

so how in touch they are with ordinary life matters.

Yet, they tend to live within a fairly narrow social circle.

Well, unfortunately, I can be criticised

for the fact that I come from a particular background

that was the only way people could get into the law when I started.

I'm a relic of the old system and people can make what they will,

but that's just how it was.

< How do you think people see you?

I've no idea! HE LAUGHS

It's very difficult to look at oneself from outside.

I try not to be conspicuous.

Walking around London and I hope nobody dreams for a moment

what job I do. I don't think I have any particular significance,

and I'm taken by surprise when people recognise me.

As head of the court,

Lord Phillips is adamant that they are not out of touch.

We are ordinary people.

We live ordinary lives, we take public transport.

We...

..by chance, if you like,

have ended up in this position,

having started life in all sorts of different walks of life.

I did National Service in the Navy, I spent a year on the lower deck.

I saw quite a wide variety of life in those days.

We are ordinary people, but I think it's important others know that.

Whatever their personal qualities, when it comes to making a decision,

there is a set process which each justice must follow.

Every stage requires a great deal of stamina.

It depends how much pressure I'm under but I start my day about five.

This morning, I'm working on a particularly difficult case

and it's hard to get it out of your mind and sometimes I wake up earlier.

Today, I woke up about three,

got up and worked for a bit and went back to bed

and then got up again at five.

These are intellectual problems not stressing problems

but if you are concentrating very hard

on a particular conundrum it doesn't go away.

So you have a few hours' sleep, then the problem takes over again.

The first part of the process is a long and lonely task -

a mass of reading.

The parties have to provide us with written arguments on each side

and they may be a 100-pages long.

We had a case the other day in which

they produced for us over 400 authorities, or decided cases.

Sometimes when you've read it, you think, "This is a difficult issue"

when I read the appellant's case, I thought that was utterly convincing.

Until I got to reading the arguments advanced on the other side.

I hadn't, at the moment, got a view on what's the right answer.

The next stage requires the justices to be at the court.

Equipped with the facts from their initial reading,

they will listen to barristers present both sides of the case.

< All rise!

What will be argued over are key points and principles of the law.

-What's your position on that?

-It's a counter-factual question, my lord.

The debates that are conducted in the court

are...for the most part, extremely stimulating

and of a very high order.

-We respectably say that it is...

-What is wrong with that analysis?

It is inapt to describe that as "objective"

and it's inapt because it leads to the consequence we described.

The nimble-footedness of counsel, the improvisational ability,

the capacity to switch tack are all very impressive.

It's an enjoyable experience to participate in.

-That a point in your favour.

-I know! I understand that entirely.

Maybe I don't seem sufficiently grateful!

ALL LAUGH

The court breaks at lunch giving the justices a chance to talk.

It will be the first of many private exchanges.

At the end of the hearing,

we have meeting at which everybody gives a provisional answer.

What they think the answer to the question we've been posed should be.

Sometimes everybody thinks the same, it's pretty clear,

and the odds are that nothing's going to change.

Sometimes, you could even have three different points of view

as to what the right answer was.

Views can be expressed forthrightly and firmly.

That's as it should be. There should be no holding back...

of strongly held opinions.

We try very hard to respect each individual's independence

and each individual's views,

but that's to say that we don't advance our own views

with a degree of advocacy, because after all,

we all started life as advocates.

These hearings may take two or three days,

but eventually the case will have been presented

and the judges decide amongst themselves which one of them

will write the lead judgment.

At that stage, it's back to gathering up

an enormous amount of written material,

cases to revise and new material that's been cited.

If Lord Hope is writing the judgment,

it also means a long journey.

The best way he can approach the task

is to go where he can guarantee silence.

The problem in London is that,

because we're busy hearing cases all the time,

you don't get time to settle down and really read and think,

whereas here I find it very peaceful.

What happens is that I have a case like this,

which I'm going to be writing a judgment on later,

and I've carried north with me the written cases,

which I've been able to shrink down to a manageable size,

which I can put in my bag.

I couldn't possibly carry all the authorities that we've cited.

Having created the space for quiet concentration,

Lord Hope can now approach the judgment.

The kind of work we do is very much an intellectual exercise

of identifying issues and working them out

according to their quality and their weight.

And that involves a lot of analysis.

You need to express yourself very clearly in writing.

You have to have a clear idea of the thread you're following

and you need to be aware of the audience you're addressing.

You're writing not so much for yourself as for other people

who are going to have to use the judgment.

The aim is a balanced and just result.

But as it's impossible not to have opinions or feelings,

the question of impartiality is a serious one.

It's at the heart of the idea of justice.

I don't think one ought to be too emotional, frankly.

The trouble with emotion is that one tends to take sides

based on emotion rather than rational thinking.

And that isn't a very sound basis for judgment.

Somehow, as a judge,

you have to detach yourself from the emotion of the occasion

and you are probably the one person who can do that.

You learn to become quite detached, actually.

It's long experience in court work.

In the case Lord Hope is looking at, an individual's risk of bankruptcy

hangs in the balance.

As it happens, this particular case is right in the field of emotion

in the sense that people's lives are being very much affected.

and one can feel a genuine feeling of sympathy

for the people who are in that position.

The system trusts that a judge will know the right place for emotion.

Yet Lord Phillips recognises there is a tension between

the decision he may like to reach

and the one the law tells him he should reach.

You need objectivity.

You can't afford to let your own feelings or emotions take charge,

because what you feel, what you might like the answer to be,

is not necessarily relevant.

This process of weighing up how you think and how you feel

means justices may not commit to a decision until surprisingly late on.

There are some cases where, until you're writing the judgment,

you don't see where it's taking you.

It may be driving you in a direction which you really didn't want to go.

But this is what the law says.

There's no avoiding this particular answer.

It's because emotions do have a place in the process,

that a judge has to be so self aware.

It would be quite wrong to say that one doesn't feel emotionally.

We have individuals who come into our court to hear

how we are going to resolve the cases

in which they personally have been involved, and some of these cases

involve a great deal of emotion.

One has enormous sympathy for the individual.

You can see how much this case means to them

and sometimes, you know that the decision that you are handing down

is going to cause them immense distress.

And that is something that you feel yourself.

One case where the justices were torn between

following the law and following their feelings

was a high-profile case that affected millions of people.

Bank charges.

Millions of bank customers hoping to get a refund on overdraft fees

will be disappointed tonight. The Supreme Court

has overruled previous judgments and it means

there'll be no major investigation of charges on customers

who go into the red without permission.

Many customers had felt bank overdraft charges were wrong

and had expected that The Office of Fair Trading would investigate.

But their hopes were dashed

by one of the first big judgments of the court.

We have held that overdraft charges form part of the price or enumeration

for the package of services that the banks provide

to their current account customers.

This means that the OFT cannot consider whether,

in imposing those charges, the banks are giving fair value for money.

Campaigners felt extremely let down.

What we need is fairness. We haven't got fairness.

We've been told it can't be assessed.

The banks have got away with pilfering our accounts for years.

The big institutions of the law

have just backed up the big institutions of finance.

Banking charges is a good example of a case

which was potentially very puzzling for the public.

The public might well have understood that the real issue was

whether bank charges were fair or not.

But that wasn't what we had to decide.

We had to decide whether the OFT themselves

could look into that question and we decided, looking at the statute

that set them up, that, no, they couldn't. It was off limits for them.

Finding the OFT remit was laid out clearly in law,

the court had no room to manoeuvre.

They were not able to rule on what they thought the law should be,

only on what it actually was.

I think, personally, I would have been quite in favour

of The Office of Fair Trading looking into bank charges.

It's a good example of a case where, if I'd had complete freedom to decide

whatever I wanted, I might well have said,

"Yes, you go and have a look at them."

But we had to look at the statute and we decided that, no,

it simply wasn't within their terms of reference.

It's because the justices are bound by the law

that there will be times when even they cannot deliver fairness.

You never like reaching a judgment which you think is not fair.

You will, if you possibly can,

reach a construction which you think does justice.

But occasionally, you have to reach a decision which you regret.

There are certainly cases like that where you're just unable,

because of the way the law works,

the way you're applying law, after all, where the result seems

very tough and one grieves for the individual who is affected by this,

but you're trapped by the way the law works

into a situation where you've no alternative

but to make that decision.

In those cases, would you say that justice has been done?

Well, that's again a relative term.

There are some things that are created by law beyond our control

which you may think is not very just.

Justice, obviously, is a very important part

of the work that we do.

We are here to administer justice.

But we are here to administer justice according to law.

And there will always be occasions when one feels that the result

that one is impelled to is not necessarily

the one that one would wish to reach.

But even if each judge rules according to the law,

justice very often faces another challenge.

Once the lead judgment has been written,

it is e-mailed to the other justices on the panel

and at this point, it's quite possible

that the others are unable to agree.

The best that can be done then is a majority ruling,

with the dissenters writing their own judgments.

But is that satisfactory?

Doesn't that mean a different justice on the panel

would have meant a different result?

Morning!

If you sit five out of the 12 justices,

and you reach the decision three-two,

it's very obvious that if you had a different five,

you might have reached decision two-three, the other way.

And this is one reason why, when we have a really important case,

we sit more than five -

seven, or even nine -

so that we involve a larger proportion of the court

in reaching the decision.

It could still be five-four.

Absolutely, and it quite often happens

that you sit seven or nine and you break that way,

because often, when you do it, it's because

the...issue involved is particularly difficult. Or it may be a case

where you're considering whether we ought to depart from

one of the decisions we've made in the past.

And that's the kind of knife-egde situation

in which opinions can differ.

So, what does that say about justice?

I think it says about justice that no judge is omnipotent

and infallible.

It's the art of doing the very best you can to get the right answer.

I think that anyone who expresses themselves as absolutely certain,

without any shadow of doubt, is either...a genius or a fool.

I think that...one can't be absolutely certain

in a significant number of cases that one reaches a view on.

Making the best of an uncomfortable situation, the justices point out

that there can be a benefit

in putting these dissenting views on the record.

I think it's more satisfactory

if we all form the same view with certainty.

But sometimes, when it is difficult, it's not a bad thing

to have a majority and a minority view. One can get things wrong.

There have been cases in the past where it's become recognised

that it was the minority, maybe even only a single judge,

who had seen the case properly and got the right answer.

One judge may interpret the law differently

because of what they alone bring to the case.

It may be their legal or their personal experience.

There is quite a lot of room for individual interpretation.

From time to time, one's own particular approach...

to concepts of justice and fairness comes in,

as does one's own particular background

and experience, which may lead you on to look at

particular factual situations in a different way.

-'For better, for worse.

-For better, for worse.

-'For richer, for poorer.

-For richer, for poorer.'

A powerful example of how Lady Hale's experience as a woman

and her background in family law could inform her view of a case,

was one involving marriage and divorce.

In Britain, prenuptial agreements

which set out what would happen financially if a marriage ended,

have not been considered legally binding.

But in 2010, decades of legal tradition

were challenged in one major divorce case.

German heiress, Katrin Radmacher,

with tens of millions of pounds to her name,

had divorced Nicolas Granatino.

Unlike most divorce cases, it was therefore the wife

who was the wealthier partner

and who had asked her husband to sign a prenup.

You say they were madly in love and she says, "Unless you sign this,

"my father's going to disinherit me." Is any man who's madly in love

going to say, "Oh, well, never mind"?

Those were the circumstances in which he signed.

The court was being asked to make legal history

and give some weight to the prenup.

Both sides were agreed, they can't be binding.

The judge always has a discretion to say the operation of this agreement

in these particular circumstances would be quite unfair.

That was common ground that,

ultimately, it was for the judge to decide. What wasn't common ground

was, how much weight do you attach to it?

Lady Hale took the view that prenups

tended to work against the interests of women,

who had struggled for years to be treated equally in law.

A prenuptial agreement is designed to take away that equality,

to deprive the less powerful party to the marriage

of what she, and it is usually she, would otherwise be entitled to.

Mainstream feminist thinking roundly condemns these agreements

as being oppressive and discriminatory.

Despite Lady Hale's concerns, all the male justices

thought couples should be trusted to make their own decisions.

Ultimately, the prenuptial case seemed to us

to admit if only one conclusion,

and that was that here was a highly intelligent couple

who had entered this agreement willingly.

Therefore, significant weight should be given to it.

But Lady Hale thought there was something flawed in this logic.

It failed to recognise that marriage is an exceptional contract.

People getting married are not in autonomous situations.

It's not like doing a commercial deal.

People make choices. They compromise their own interests

for the greater good of the family as a whole,

whether it's the other spouse or whether it's the children

or whether it's all of them. At least one hopes they do.

Ultimately, after two days, there was a verdict.

A German heiress, worth tens of millions of pounds,

has won a landmark divorce case at the Supreme Court.

The judges have ruled that Katrin Radmacher's prenuptial agreements

with her investment banker husband was valid.

The court's decision was a landmark. From now on,

prenups could be given significant weight in divorce cases.

Katrine and her ex-husband had promised each other that

if anything went wrong between them, they wouldn't make financial claims

against each other. It was meant to be a marriage for love,

not for money.

But it was a majority ruling

with all the men thinking one way and Lady Hale the other.

Well, of course, it's obvious, if I may say so, that people will

immediately make a connection between the fact that

the eight judges that comprised the majority were male,

and the single justice who dissented was female.

But in my judgment, there is no correlation to be made.

For Lady Hale it was a blow for women's rights.

It was striking that all the men thought one thing

and I thought something else.

And so I felt it necessary to say so but I hope they'll forgive me.

But the most serious battle the court has faced

was not among themselves.

It has been between them and the Government. The issue is terrorism.

The Government on one side would be championing security,

the Judiciary, liberty.

The event that triggered this conflict was 9/11.

BIG BEN CHIMES

-REPORTER:

-An astonishing series of acts of terrorism

has been perpetrated in the United States. Countless numbers of people

were killed and injured, when at least three...

The Blair government responded with an unusual measure.

They passed an anti-terrorism act that would allow them to lock up

foreign suspects without trial.

The change was this feeling we are

all under threat and in a state of

national emergency. There's always a reaction to play it safe,

if you're worried about somebody lock him up. You only had to state

that proposition to realise the dangers it carries.

Who's going to take the decision? The Executive.

By 2004, the Government had imprisoned 17 suspects

in Belmarsh Prison.

None of them had been charged. The chain of events

that followed, threatened to destabilise

the entire relationship between the Executive and the Judiciary.

For not only was the Government violating

an ancient British principle,

they were contradicted their own Human Rights Act,

passed three years earlier.

Just think what the great majority of the British public would think,

if a member of their family could be hauled off by the police,

and locked up indefinitely, not told why, not given the evidence,

not given an opportunity to challenge.

It's the thin edge of wedge, it's fine if you start on the assumption

that they're not going to lock up anyone unless they are a terrorist.

You just can't quite prove it.

But the risk is that they're going to lock up people who are innocent,

who are not terrorists.

And these people are going to be there, indefinitely,

on suspicion.

And that is such a horrific prospect.

In 2004, the highest court in the land was still the House of Lords

with the Law Lords presiding. And it was here that the case

between the imprisoned suspects and the Government ended up.

The prisoner's lawyers pointed out an error in the Government's logic.

If the act was designed to lock up potential terrorists,

why lock up only foreigners.

It doesn't take a lot of imagination to realise that is not rational.

Because there are plenty of home-grown, non-foreign terrorists,

whom they were not going to lock up, or suspected terrorists,

in the same way. And the one thing that the law

does not allow you to do, is be irrational.

The Government's case hinged on whether the threat the country faced

was so serious that they could depart from the Human Rights Act.

If it wasn't, it meant the Government

was violating its own treaty and threatening fundamental freedoms.

An enormous amount was at stake. The verdict made headline news.

Good evening. Today's ruling on the Government's policy

on detaining foreign suspects

without trial is of such constitutional significance

that nine, rather than five Law Lords sat in

judgment and they have delivered an extraordinary strong denunciation.

Fundamental rights are protected in our democracy they belong to

everyone whoever they may be and wherever they have come from.

The Law Lords rejected the Government case.

Lord Hope recognised how much was at stake.

It's not very difficult to understand that if the rule of law

was not there then the pressures would go on pressing and the extent

of the invasion of liberty would widen, people would disappear,

things would be silenced, freedom of press would be trampled on.

It's our job to see that that simply does not happen.

The Government reacted strongly and accused the Judiciary of

being irresponsible. Jack Straw went public on the radio.

The Law Lords, and I understand their anxieties, and all of us

are very anxious about these powers are simply wrong and on

this huge dilemma of how you balance liberty and order,

the most important liberty, is the right to life.

They were very upset about our decision.

It's a good illustration that in an acute emergency decisions can

be taken that threaten the rule of law

and which require objective and dispassionate review.

Did you have any doubts at that time?

No, I thought the decision was absolutely right.

But the battle was not over.

The Government believed that there were terrorists living amongst us,

and insisted on special powers to contain them.

The result was Control Orders, a form of house arrest

keeping suspects confined for up to 18 hours a day.

Within months of the new orders, the terrorist threat became a fact.

Central London is rocked by a series of terrorist attacks.

Police speak of many casualties.

The terrorists hit without warning

at the height of the morning rush hour on the crowded transport system.

The case for control orders suddenly seemed stronger.

What has been confirmed today, is that terrorist cells

continue to operate to devastating effect in the UK.

The mood had changed. There was an intense nervousness.

A jumpiness. How would the Judiciary act now,

if a challenge to the new control orders came before them?

The measures were designed to get round the Human Rights Act

by restricting a suspect's liberty not by depriving them of it.

The problem was distinguishing between the two.

the only control orders you can have are ones that don't involve

a deprivation but only a restriction on liberty.

How long do they have to be under house arrest

for it to be deprivation?

How long do they have to be allowed out of the house

for it to be merely a restriction?

Making this distinction was not easy, but it was essential.

It is extremely difficult to prescribe

whether it should be 12 hours or 12 days.

But the law acts on evidence

and what we require

to be persuaded of, is that there is justification, in the form

of tangible evidence for any encroachment

on the liberty of the subject.

Suspects living under control orders challenged the Government

over the length and won. 18 hours was ruled unlawful.

So next the Government settled on 16 hours but

moved a suspect miles from his home.

Now completely isolated from his family and friends, the question was

whether this was so harsh that it was almost as bad as prison.

The result was in 2010, the new government found itself in court.

16 hours, you know if you are the Secretary of State that you

are in very dangerous territory and therefore there is nothing surprising

about saying and you have better have done your homework on the effects.

Had the Government's control order

virtually destroyed the suspect's family life?

We are talking about an individual who has only been moved an hour

-and three quarters away from London.

-With respect it's a pretty big only.

I have members of my family who live in London and others who live rather

closer than that and the difference in the occasions on which I see them

-is quite enormous.

-Conversely one might also point to the fact that

for some people and hour and three quarters

by train is daily commuting.

Imagine the children's reaction every week,

every Sunday being dragged

off to that place, nobody would expect that to carry on indefinitely

would they? Imagine it?

"Another Sunday, oh, gosh, off up there again."

The Government lost the case again.

Separated from the heat of politics, the justices had decided

that this control order went too far.

It's a how long is a piece of string question to some extent.

And the kind of area where you need an objective tribunal

listening to argument on both sides, and ultimately, drawing the line.

But no-one can suggest that there is a particular

right place and a wrong place to draw that line.

But all these defeats for the Government have raised

a fundamental constitutional question.

Should an unelected court

be telling a democratically elected government what it can and can't do.

We apply the human rights convention, because that's what Parliament has

told us to do. And until Parliament tells us otherwise,

that is our duty, and we are complying

with the wishes of Parliament in doing that.

And Parliament hasn't taken the step of saying, right,

we're going to tear up human rights, and it won't.

-Why won't it?

-Because it appreciates

that fundamental human rights are of fundamental importance.

In fact the present government is still talking about reforming the

Human Rights Act. It also intends to replace control orders.

But as long as Parliament is passing complex laws and signing treaties,

there is potential tension between the Government and the Judiciary.

Everyone learns lessons, and the way the system works in this country,

and it's to the credit of everybody, including the Executive,

it's that they respect decisions taken against them.

They may not like them, but there they are.

One hopes that that process will have, as it were, cleared the way

for a future where the Executive is more aware of what can be done

and what can't be done, and the way in which

it should go about its affairs.

We must be a bulwark against executive decisions

which we are convinced infringe, impermissibly,

fundamental human rights, and that, I think,

is a fundamental precept.

It's importance can't be overestimated,

that the Executive cannot have access to unbridled power.

This series of high profile battles

between the Government and the Judiciary have made it

absolutely clear to the justices how crucial their independence is.

We have to fulfil the function we have as guardians of the rule of law

and if it comes into collision with the political view then so be it.

The final Court of Appeal had always been independent

of the Government, even when they were sitting in the House of Lords,

but this new clear physical separation between Parliament and

the Supreme Court, adds weight to this vital truth.

Those who make the law should be answerable to the law.

The rule of law is a principle

that applies in all situations.

And once you, even if you're a government, have signed up to

binding legal principles, there has to be somebody who decided

whether you're complying with what you have signed up to or not.

And the independent Judiciary are the best body to do that.

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